Comment by atmavatar
14 days ago
I would point out that even had RBG retired early enough for Obama to appoint a replacement, the court would still have Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority.
Sure, there may be a case here or there that would go the other way, but the vast majority of cases before this hypothetical court would be decided the same way as they have been, merely with a thinner majority.
Yes, RBG retiring would not have switched the court.
But 6-3 is meaningfully different than 5-4. 6-3 means you can lose one from your coalition, enabling more extreme majority opinions. You can see this even in the very highest profile cases like Dobbs and Trump v US, where one of the conservatives didn't join the entire majority.
It also makes flipping the court enormously more difficult. 5-4 means that one conservative dying and an inopportune time and you flip it. 6-3 makes this statistically unlikely.
I very strongly suspect that we will see Alito and Thomas retire this year. Everybody knows how this goes now.